Godfrey Zaburoni was convicted by a jury in the state’s District Court of Queensland in 2013 for “unlawfully transmitting a serious disease to another with intent to do so”.
He is currently serving a nine-and-a-half year jail sentence.
Zaburoni pleaded guilty in the District Court to the lesser charge of reckless infliction causing grievous bodily harm and denied it was deliberate.
A judgement summary of the High Court decision says, “apart from the evidence that the appellant engaged in frequent unprotected sexual intercourse with the complainant, there was no evidence to support the inference that the appellant had the intention to transmit HIV to her.”
The five judges quashed his conviction and “substituted for the verdict of the jury a verdict of guilty of unlawfully doing grievous bodily harm to the complainant, to which the appellant had pleaded guilty”.
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The case has been remitted back to Queensland’s District Court for re-sentencing.
The 37-year-old Zimbabwean-born acrobat who once appeared on Australia's Got Talent is expected to be deported once he has served his jail term.
The judgement summary says “the appellant was diagnosed with HIV in 1998 and was informed then that there was a risk of transmission of the disease through unprotected sexual intercourse. He commenced a relationship with the complainant in 2007 but did not disclose to her that he was HIV positive.
“They engaged in frequent unprotected sexual intercourse during their relationship, which lasted until September 2008.
“The complainant was diagnosed as HIV positive a year after their relationship ended. The appellant lied to the complainant about his HIV status several times during and after their relationship.”
Queensland’s Supreme Court in 2014 rejected an appeal against the conviction saying Zubaroni’s lies about his HIV status allowed the jury to come to reasonably conclude he intended to transmit the disease to his partner.
Zubaroni’s High Court case was backed the by the HIV/AIDS Legal Centre in Sydney.
“The case will resolve unanswered questions and expose the problems with transmission of HIV being dealt with under criminal law instead of under public health laws,” said Alexandra Stratigos from the HIV/AIDS Legal Centre in a statement.
“The judgment is a significant advance, and helps to resolve the difficulty that there is no one ‘applicable criminal law standard’ across Australia and the test for the intentional transmission of HIV to a sexual partner has been a source of uncertainty.”
The statement added that “until today these issues had not been determined in a court at this level worldwide”.
“The proceedings in the lower courts demonstrated that an ‘impartial’ jury and the judiciary failed to understand that there are many reasons why people may not disclose their HIV status, including fear of abandonment, discrimination or violence; shame or embarrassment; and/or being in denial about their HIV status; and rather formed the view that denial and non-disclosure in the context of a one and a half year relationship amounted to intent to transmit HIV.”
“It is critical to advocate on behalf of accused persons to have this information brought before the court.
“The outcome of the proceedings can be utilised by HIV advocates to progress the need to have adequate prosecutorial guidelines.”
